We are confronting an existential crisis for our democracy, with an administration that seems intent on pushing past the boundaries of legality and decency.
The courts—especially the federal district courts—are emerging as the last line of defense; we don’t see the legislative branch of government meeting the moment. As the courts did in rejecting scores of lawsuits claiming fraud in the 2020 election, the courts are again the ones blocking what they determined to be illegal firings and executive orders.
How long can this hold, as the courts cannot do this alone? And, to make matters worse, I think we may well be on the precipice of seeing the military called in to operate domestically - precisely the tactic that Liz Cheney and others foretold.
In this video, I break down some of these legal battles, from the administration’s firings of probationary employees to its attempts to dismantle birthright citizenship to its attack on law firms and lawyers. I explore the unprecedented phenomenon of senior leadership in the Department of Justice—figures who traditionally don’t argue cases—stepping into the courtroom themselves. Why? Well with numerous career prosecutors refusing to sign off on actions they see as unlawful, this may remarkably be their only option.
Right now it’s the courts—and the courageous plaintiffs bringing these cases—who are doing the work to save the rule of law. But as these cases move up the judicial ladder, the question remains: will higher courts hold the line, or will they buckle under pressure? This is where the battle for the rule of law is being fought, and it’s a fight none of us can afford to ignore.
–Andrew
Transcript
Hi, welcome back.
I wanted to talk about where I think things stand with our democracy. Right now, the backbone of our democracy is the federal courts—specifically, the district courts, which are the trial courts, the first level of our judicial system. We’re not seeing much pushback from Congress, so the primary resistance to the administration’s actions is coming from these district courts, deciding whether those actions are legal or illegal based on statutory or constitutional grounds.
Here’s a quick rundown of recent developments:
• Probationary Firings: Just today, a federal court in San Francisco ruled that the administration’s firing of probationary employees—typically the easiest category to dismiss—was illegal. The Office of Management and Budget (OMB), which carried out these firings, was found to have no authority to do so. The court had asked the head of OMB to testify and explain his authority. He refused to be cross-examined, even though he had submitted an affidavit. As a result, the court disregarded his statement. The outcome? The government must halt these firings and rehire those affected.
• NLRB Firings: Similar firings at the National Labor Relations Board (NLRB) and other agencies were also rejected by district judges in D.C.
• Birthright Citizenship: The administration’s proposal to end birthright citizenship—something long guaranteed by the 14th Amendment—has been blocked by multiple preliminary injunctions, issued not just by Democratic-appointed judges but also by Republican-appointed ones who ruled the move unconstitutional.
• Columbia Student Arrest: The effort to deport a Columbia student arrested this past Sunday is on hold. The case is pending in the Southern District of New York, and the court has ordered that the student cannot be removed from the country until a final decision is made.
• Eric Adams Case: The administration’s attempt to dismiss the Eric Adams case is still pending. If the dismissal were granted “without prejudice,” it would leave a “choke chain” on Mayor Adams, meaning he could be re-indicted at any moment if he didn’t comply with the administration. However, I suspect the judge may dismiss the case “with prejudice,” ensuring Adams isn’t under ongoing threat. For now, the court is considering briefs and the case is still undecided.
• Perkins Coie Case: A major development also happened in D.C. involving the law firm Perkins Coie, known for representing high-profile clients, including Hillary Clinton and the Democratic National Committee. Trump issued an executive order that was clearly retaliatory—targeting security clearances and banning government contracts with the firm. Yesterday, a judge ruled that this order violated the First Amendment and harshly criticized the administration’s actions.
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The Government’s Strategy
It’s becoming clear that the administration’s approach is to push boundaries and do whatever it can until the courts stop them—like hockey players taking shot after shot, hoping something slips through.
And here’s an interesting observation:
• The Attorney General and Deputy Attorney General—who traditionally don’t argue cases—have been stepping into the courtroom themselves. That’s almost unheard of. For instance, in the Perkins Coie case, it was the Chief of Staff to the Attorney General who showed up to argue the case.
• In the Eric Adams case, only two names appeared on the government brief: the Deputy Attorney General and the Principal Deputy Attorney General. No career prosecutors. This raises two possibilities:
1. Career officials might be refusing to sign off on actions they believe are illegal. We know some prosecutors have resigned rather than participate.
2. The administration may simply not trust career officials to handle these sensitive cases.
There’s even evidence suggesting that leadership pressured teams to “find someone” to handle these cases—threatening that if no one stepped up, firings would follow. And indeed, multiple career officials have been fired, including those involved in the Special Counsel investigation and the Public Integrity Section, which has been largely dismantled.
And that raises an important question: Why would the administration want to weaken its capacity to prosecute public corruption?
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The Courts Are Holding the Line—For Now
Right now, it’s the plaintiffs bringing these cases and the district courts hearing them that are keeping democracy intact. If you’d like to follow these cases, I recommend checking out the Litigation Tracker on Just Security. It’s a great resource that organizes cases by topic, including those on birthright citizenship.
These district judges deserve recognition for upholding the rule of law, even under significant pressure.
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Looking Ahead
The administration is likely to keep testing the limits. But as these cases move through the Court of Appeals and eventually reach the Supreme Court, the outcome will hinge on a few key votes.
• Justice Amy Coney Barrett is one to watch. If she joins the court’s three liberal justices, they’ll still only be four. The critical fifth vote would come from Chief Justice Roberts.
• As Justice Sandra Day O’Connor once said, the Supreme Court is all about five votes.
It’s a complex and evolving situation. Each case depends on its specific facts and how the justices interpret the scope of executive power.
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Why the Courts Matter Now
Right now, the courts are the main line of defense. We’ve seen Congress largely abdicate its role in checking executive power. Instead of guarding its own authority, Congress is acting more like a lapdog to the administration.
That’s why it’s the courts that matter most right now.
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What Can You Do?
There’s still power in collective action. As I’ve said in other posts, there are things we all can do to make our voices heard. If you’re looking for ideas, check out my post titled “What Can I Do?”
Stay tuned for more updates. Thanks for listening.
